with whom GOLDBERG, Circuit Judge, joins, dissenting:
With deference, I dissent. Believing as I do that the Supreme Court opinion in Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), strongly supports the conclusion expressed in the panel opinion of this Court that both the Drummonds and Timmy have a “liberty” right in their foster family relationship which cannot be destroyed by the state without a due process hearing, I consider it necessary to dissent from the Court’s opinion.
I. THE “LIBERTY” INTEREST OF THE DRUMMONDS
The OFFER case arose from a contest between the natural mother of a child and foster parents who had had continuous custody of the child for a considerable period of time. The New York statute specifically addressed the problem that was presented when such a contest arose. As described in the Court’s opinion in OFFER:
“Soc.Serv.L. § 383(2), supra, n. 3, provides that the ‘authorized agency placing out or boarding [a foster] child . may in its discretion remove such child from the home where placed or boarded.’ Administrative regulations implement this provision. The agency is required, except in emergencies, to notify the foster parents in writing 10 days in advance of any removal. 18 N.Y.C.R.R. § 450.-10(a). The notice advises the foster parents that if they object to the child’s removal they may request a ‘conference’ with the social services department. Ibid. The department schedules requested conferences within 10 days of the receipt of the request. 18 N.Y.C.R.R. § 450.10(b). The foster parent may appear with counsel at the conference, where he will ‘be advised of the reasons [for the removal of the child], and be afforded an opportunity to submit reasons why the child should not be removed.’ 18 N.Y.C.R.R. § 450.10(a). The official must render a decision in writing within five days after the close of the conference, and send notice of his decision to the foster parents and the agency. 18 N.Y.C.R.R. § 450.10(c). The proposed removal is stayed pending the outcome of the conference. 18 N.Y.C.R.R. § 450.-10(d).
If the child is removed after the conference, the foster parent may appeal to the department of social services for a ‘fair hearing,’ that is a full adversary administrative hearing, under Soc.Serv.L. § 400, the determination of which is subject to judicial review under N.Y.C.P.L.R. Art. 78; however, the removal is not automatically stayed pending the hearing and judicial review. (Footnotes omitted).”
Ibid. 431 U.S. 829, 97 S.Ct. 2102-03.
Furthermore, the Supreme Court opinion referred to an additional “pre-removal procedural safeguard.” The Court said:
*1213“In other words, § 392 provides a mechanism whereby a foster parent-may obtain pre-removal judicial review of an agency’s decision to remove a child who has been in foster care for 18 months or more.”
Ibid.1 431 U.S. 832, 97 S.Ct. 2104.
Notwithstanding these provisions of the New York law, the three-judge district court enjoined a removal in the OFFER case without additional procedural safeguards, the court having found those provided by statute were insufficient.
The Supreme Court reversed the judgment of the three-judge court, not by saying that the foster parents did not have a protectable interest under the Constitution, but because it found “that ‘narrower grounds exist to support’ our reversal.” The Court stated:
“We are persuaded that, even on the assumption that appellees have a protected ‘liberty interest’ the district court erred in holding that the pre-removal procedures presently employed by the state are constitutionally defective.”
Ibid. 431 U.S. 847, 97 S.Ct. 2111.
In view of the fact that the State of Georgia has no “preremoval procedures” that will fit any concept of due process, a subject that will be discussed later, the case before us demands that a determination be made whether there is such protectable interest in the Drummonds.
As is sometimes the case, I believe that the concurring opinion, joined in by the Chief Justice and two of the Justices, dramatically emphasizes the importance which a majority of the court attributed to the question whether a liberty interest inheres in the relationship between the foster parents and children who have been in their care a substantial period of time. It would have been very simple for the court to have taken the position adopted by the concurring Justices as expressed by Mr. Justice Stewart:
“I cannot understand why the Court thinks itself obliged to decide these cases On the assumption that either foster parents or foster children in New York have some sort of ‘liberty’ interest in the continuation of their relationship, (footnote omitted). Rather than tiptoeing around this central issue, I would squarely hold that the interests asserted by the appel-lees are not of a kind that the due process clause of the Fourteenth Amendment protects.”
Ibid. 431 U.S. 857, 97 S.Ct. 2116-17.
However, rather than follow this course, the Court took considerable pains to analyze the assertion of the foster parents and foster children that they had a constitutionally protected liberty interest. A careful reading of the opinion indicates to me that but for the existence of the narrower ground in that case and but for the fact that the contest before the court was being waged between foster parents on the one hand and natural parents on the other, the court would readily have determined that such constitutionally protected liberty interest did exist. In the first place, the court recognized that, although “the usual understanding of ‘family’ implies biological relationships, and most decisions treating the relation between parent and child have stressed this element” and that “a biological relationship is not present in the case of the usual foster family” nevertheless “biological relationships are not exclusive determination of the existence of a family.” Ibid. 431 U.S. 843, 97 S.Ct. 2109-10. Most telling is the following language from the Court’s opinion:
“Thus the importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in ‘promot[ing] a way of life’ through the instruction of children. Wisconsin v. Yoder, 406 U.S. 205, 231-233, 92 S.Ct. 1526, 1541-42, 32 L.Ed.2d 15 (1972), as well as from the fact of blood relationship. No one would seriously dispute that a deeply loving and interdependent relationship between an adult and a *1214child in his or her care may exist even in the absence of blood relationship. (Footnote omitted). At least where a child has been placed in foster care as an infant has never known his natural parents and has remained continuously for several years in the care of the same foster parents, it is natural that the foster family should hold the same place in the emotional life of the foster child, and fulfill the same socializing functions, as a natural family. (Footnote omitted). For this reason, we cannot dismiss the foster family as a mere collection of unrelated individuals. Cf. Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974).” [Emphasis added.] Ibid. 431 U.S. 844, 97 S.Ct. 2111.
Following this language, the Court pointed up the distinctions between the foster family and the natural family, particularly in light of the fact that the foster family is a creation of statute and the Court concluded this discussion by saying:
“In this case, the limited recognition accorded to the foster family by the New York statutes and the contracts executed by the foster parents argue against any but the most limited constitutional ‘liberty’.” [Emphasis added.]
The Court then discussed the posture of the OFFER case as being a contest between foster parents and the natural parent of a child. The Court then said:
“It is one thing to say that individuals may acquire a liberty interest against arbitrary governmental interference in the family-like associations into which they are freely entered, even in the absence of biological connection or state law recognition of the relationship. It is quite another to say that one may acquire such an interest in the face of another’s constitutionally recognized liberty interest that derives from blood relationship, state law sanction, and basic human right — an interest the foster parent has recognized by contract from the outset. Whatever liberty interest might otherwise exist in the foster family as an institution that interest must be substantially attenuated where the proposed removal from the foster family is to return the child to his natural parents.” [Emphasis added.]
Ibid. 431 U.S. 846, 97 S.Ct. 2111.
Thus, I think it can confidently be stated that if the Drummonds’ case were before the Supreme Court instead of the OFFER case and the state law did not provide the elaborate arrangements for a due process hearing, the foster parents would have prevailed in their claim that they had a constitutionally protected liberty interest.
II. 'TIMMY’S “LIBERTY” INTEREST
What has been said respecting the liberty interest of the Drummonds, of course, applies, possibly even more cogently, in the case of the small child whose entire life will be affected in large or small degree by his being taken away from the only parents he has known since his birth. Again, I refer to the language of the Court in OFFER:
“At least where a child has been placed in foster care as an infant, has never known his natural parents, and has remained continuously for several years in the care of the same foster parents, [all of which perfectly describes Timmy] it is natural that the foster family should hold the same place in the emotional life of the foster child, and fulfill the same socializing functions as a natural family. (Footnote 52 omitted).”
In footnote 52, the Court, after speaking of the dispute as to the validity of a “psychological parent” theory stated:
“But this case turns not on the disputed validity of any particular psychological theory, but on the legal consequences of the undisputed fact that the emotional ties between foster parent and foster child are in many cases quite close, and undoubtedly in some as close as those existing in biological families.” [Emphasis added.]
Ibid. 431 U.S. 845, 97 S.Ct. 2110.
Moreover, Timmy’s case does not rest entirely on my understanding of what the Supreme Court would do if faced with the *1215precise issue presented by Timmy. It appears that the defendants agree that Timmy has due process rights. The State, in its brief, stated:
“The Department recognizes the existence of children’s rights — and specifically recognizes that Timmy had due process rights involved in this juvenile system.”
Further, in the appellees’ petition for rehearing en banc they stated:
“Defendants have conceded that children have due process rights. However, the scope of those rights is completely a function of the nature of the Government conduct affecting the child. Thus, where a government acts in its parens patriae capacity to protect neglected children and assumes the status of guardian, through its qualified agency personnel, the child’s rights are protected if the state structures a system designed to accommodate the child’s best interest.”
As I read this language, it means that the defendants concede that the liberty interest exists, but that the Georgia adoptive system, taken as a whole, affords to Timmy the due process to which he is entitled and that all the process that Timmy is due at any stage of his temporary care, his foster family relationship and their terminations, the termination of parents’ rights, and final adoption is that “the state structures a system designed to accommodate the child’s best interest.” In other words, appellees say that as long as the legislature decides in its wisdom that everything relating to an abandoned child’s welfare and status can safely be left to the uncontrolled and unre-viewable discretion of state and county employees that satisfies all due process requirements. This would include the action taken here by which the defendants seek to terminate irrevocably a relationship which the Supreme Court has, in the passages quoted above, recognized as parallel to that of a biological family, without any opportunity of the child to be heard. In any event, it appears to be a concession by the state that Timmy has a protectable interest. The question whether this interest can be taken away from him by the sort of proceedings had here is discussed below.
III. WHAT PROCESS IS DUE?
The ad hoc nature of the steps that finally led to a committee decision to remove Timmy from the Drummonds’ custody and to “begin immediately to look for an appropriate black adoptive home” is fully set out in the panel opinion of this Court at 547 F.2d 835 (5th Cir. 1977). As fully disclosed in that opinion, in March 1976, a “staffing” of four caseworkers or supervisors, none of whom had either seen the Drummonds or Timmy at that time, concluded ex parte that the Drummonds should be told that Timmy was to be taken from their care and “that it would be in Timmy’s best interest to be adopted by a black couple.” Bearing in mind that this decision was made before any of the persons involved had seen the Drummonds and before the several investigations and studies of the Drummonds as potential adoptive parents were made,2 it is obvious, it seems to me; that Mrs. Dallinger’s effort to analyze at the trial what was meant by the action taken at the staffing is an afterthought, because the only purpose for approaching the Drummonds was to explain to them that the child was to be removed and awarded to black adoptive parents. I comment on this only because the decision on whether the procedures followed provided minimal due process must necessarily depend upon when the decision was made. Miss Osgood’s statement that the question was raised “that if the Drummonds were not amenable to our plan, would we move Timmy to a black foster home feeling that, you know, it would be better if we were going to have him adopted by a black couple, to have him in a black foster home if there was going to be any length of time before he was free” clearly indicates that “our plan” was that “we were going to have him adopted by a black *1216couple.” It seems apparent that this was the decision because the undisputed testimony of Mrs. Drummond following the final “consensus” was that Mrs. Dallinger said to Mr. and Mrs. Drummond: “I am sure that you are both very anxious to know what has happened and we called you hi to tell you that the decision still stands, that we feel that Timmy will be better off adopted by a black couple or a black family.” [Emphasis added]. Of course, the only “decision” that Mrs. Dallinger could have referred to is the decision made at the March staffing which I have discussed above. I suppose no one would claim that if the Drummonds and Timmy are entitled to any process at all they had received it by the time this decision was made.
However, the matter did not end after the March meeting between the caseworkers and the Drummonds. The latter protested and requested a reconsideration. They were put off by statements that no action would be taken until after Timmy’s mother’s rights had been terminated by the Juvenile Court. This was done in September, and in the meantime, several inquiries and studies were made by caseworkers or other officials of the defendant Department, most of which discussed the merits, pro and con, of the relationship between Timmy and his foster parents.3 Finally, without giving the Drummonds an opportunity to be present and without their having been notified of the standards by which the relationship would be judged, a group meeting of 19 employees of the Department was called to obtain a “consensus” as to what should be done with Timmy in relation to his foster parents.
A written report of this meeting states in its last paragraph:
“A vote was taken and it was a group decision that it would not be in Timmy’s best interest to leave him in the Drum-monds’ home, and that we would begin immediately to look for an appropriate black adoptive home. Although this was a difficult decision it was felt that Timmy’s long range best interest must be the focus.”
The Drummonds were not present at the staffing of November 21. No physician or psychiatrist was present. There is no record of any testimony or statement made by any person present, except that we can assume that the documents heretofore referred to were available to the members of the group. The Drummonds were not given an opportunity to present any statements or evidence, much less to be represented by counsel or to present witnesses supporting their position nor were they given any notice of the basis on which the decision might rest. Of course, it is apparent from the face of the documents that no findings of fact were made as to any of the possible grounds of challenging their qualifications as adoptive parents. It is apparent from the record that they were attempting at all times merely to resist the removal of Timmy on the only ground which was explained to them, that is that it was the plan for “this type” of child to be adopted by black parents. It follows, of course, that it is impossible to tell the basis on which the decision was made, since no findings of fact were made. The trial court did not deal with the due process claim asserted by the Drummonds. Timmy’s separate claim of the right to due process was not presented, because he was not separately represented in the trial court.
I, of course, agree with the conclusion in the Court’s opinion that the kind of a hearing that is mandated by the due process clause varies according to the particular interests that are sought to be protected and the adverse effect a requirement of a hearing would have on the governmental interest involved. However, one of the principal reasons why I feel it necessary to note my dissent to this opinion is the conclusion stated in the final paragraph:
“Given the nature of the interest at stake, and the inquiry involved, as well as *1217the overwhelming need for flexibility in this situation and the complexity of the decision to be made, this Court holds that whatever process was due was rendered by the state agency in this case.”
I sincerely believe that this statement trivializes due process beyond recognition. In the Supreme Court decision, Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, the Court found that its prior decisions indicated that identification of the specific dictates of due process “generally requires consideration of three distinct factors:
“[F]irst, the private interest that will be affected by the official action; second the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See, e.g., Goldberg v. Kelly, supra, 397 U.S. 254, at 263-271, 90 S.Ct. 1011, 25 L.Ed.2d 287.”
In that case, which was the complaint of a disabled worker that prior to the termination of Social Security disability benefit payments the recipient must be afforded an opportunity for an evidentiary hearing, the Court found that he was not entitled to such a hearing because of the elaborate procedural provisions under the statute and regulations, saying:
“Information regarding the recipient’s current condition is also obtained from his sources of medical treatment DISM, § 353.4. If there is a conflict between the information provided by the beneficiary and that obtained from medical sources such as his physician, or between two sources of treatment, the agency may arrange for an examination by an independent consulting physician. Ibid. Whenever the agency’s tentative assessment of the beneficiary’s condition differs from his own assessment, the beneficiary is informed that benefits may be terminated, provided a summary of the evidence upon which the proposed determination to terminate is based, and afforded an opportunity to review the medical reports and other evidence in his case file. He also may respond in writing and submit additional evidence. Id. § 353.6.
The state agency then makes its final determination, which is reviewed by an examiner in the SSA Bureau of Disability Insurance. 42 U.S.C. § 421(c); CM §§ 6701(b), (c). If, as is usually the case, the SSA accepts the agency determination it notifies the recipient in writing, informing him of the reasons for the decision, and of his right to seek de novo reconsideration by the state agency. 20 CFR §§ 404.907, 404.909 (1975). Upon acceptance by the SSA, benefits are terminated effective two months after the month in which medical recovery is found to have occurred. 42 U.S.C. § 423(a) (1970 ed. Supp. III).
If the recipient seeks reconsideration by the state agency and the determination is adverse, the SSA reviews the reconsideration determination and notifies the recipient of the decision. He then has a right to an evidentiary hearing before an SSA administrative law judge. 20 CFR §§ 404.917, 404.927 (1975). The hearing is non-adversary, and the SSA is not represented by counsel. As to all prior and subsequent stages of the administrative process, however, the claimant may be represented by counsel or other spokesmen. § 404.934. If this hearing results in an adverse decision, the claimant is entitled to request discretionary review by the SSA Appeals Council, § 404.945, and finally may obtain judicial review. 42 U.S.C. § 405(g); 20 CFR § 404.951 (1975).
Should it be determined at any point after termination of benefits, that the claimant’s disability extended beyond the date of cessation initially established, the worker is entitled to retroactive payments. 42 U.S.C. § 404. Cf. § 423(b); 20 CFR §§ 404.501, 404.503, 404.504 (1975). If, on the other hand, a beneficiary re*1218ceives any payments to which he is later determined not to be entitled, the statute authorizes the Secretary to attempt to recoup these funds in specified circumstances. 42 U.S.C. § 404. (Footnotes omitted).”
424 U.S. at 338, 339, 96 S.Ct. at 904-05.
By contrast, there is no statute and there are no regulations that cover the requirements which must be complied with by the Department before a relationship such as that enjoyed by the Drummonds and Timmy is terminated. In actual practice, moreover, there was nothing to compare with the provision described in the margin that “whenever the agency’s tentative assessment of the beneficiary’s condition differs from his own assessment, the beneficiary is informed that benefits may be terminated, provided a summary of the evidence upon which the proposed determination to terminate is based, and afforded an opportunity to review the medical reports and other evidence in his case file” nor was there anything remotely resembling the opportunity given, as described by the Supreme Court in its opinion which says “he also may respond in writing and submit additional evidence.”
In the Mathews case, as the Supreme Court noted, the final determination by the agency is then “reviewed by an examiner in the SSA Bureau of Disability Insurance.” 42 U.S.C. § 421(c); CM §§ 6701(b), (c) (footnote omitted). If, as is usually the case, the SSA accepts the agency determination, it notifies the recipient in writing informing him of the reasons for the decision, and of his right to seek de novo reconsideration by the state agency. . . .” 424 U.S. at 338, 96 S.Ct. at 904. [Emphasis added.]
All this is then followed if the recipient seeks reconsideration, by a federal appeal and an evidentiary hearing before an administrative law judge, as pointed out in the margin. In contrast, there is nothing in the Georgia law that permits any review, appeal or reconsideration by any tribunal or official or court of the “consensus judgment” made by this ad hoc committee.
The only kind of judicial review available is by the filing of a complaint in the United States Court where, as happened in this case, the district court had before it only an imperfect documentary record and the testimony of several of the actors in the proceeding who undertook to speak for the entire group of 19 and to explain what they had in their mind when they finally terminated Timmy’s only known family relationship.
Of course, prominent in the Court’s discussion in the Mathews case is the kind of harm that might result by the official action, together with the risk that such harm would occur through the procedures used, together with the probable value of additional procedural safeguards. Here, all evidence of the case indicated the agreement of all concerned that a breakup of this family unit would be a traumatic experience for the child. Furthermore, whereas the Mathews case dealt with money which could be recouped if the decision turned out, to be erroneous, what is dealt with here is the child’s whole life, for the termination will undoubtedly govern Timmy’s whole life, optimistically for good, but, if erroneous, for harm.
As to the governmental burdens which would result from granting of minimal due process, there is nothing in the record that indicates that any substantial number of foster parents seek to actually establish a close family relationship with an infant or child of tender years and then seek to become adoptive parents. Any requirement of due process should certainly not extend beyond those who wish to have some such procedures followed if they find themselves in the same position with respect to a foster child as are the Drummonds. The administrative procedures would thus appear not to present any formidable state burden.
Although the court in Mathews was dealing with a property interest, I think its description of the Supreme Court’s prior efforts to define due process is apposite here. The Court said:
“The ‘right to be heard before being condemned to suffer grievous loss of any *1219kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.’ Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). See Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914).”
Whatever took place within the confines of the Department, certainly cannot be thought by anyone to have fallen within any of these definitions. Probably the worst aspect of the matter is that under the law as announced by the Court here, absolute and final discretion is allowed to the Department.
I know of no other situation under our laws in which the whole future life of a child of tender years can be gravely affected by the totally uncontrolled discretion of public officials without an opportunity for a hearing by those affected. I join in the assumption that I am sure underlies the opinion of the Court that the persons involved intended to do what they thought to be for the best of the child in the circumstances, but the law we announce today would deny relief to persons equally affected even though a strong showing could be made that the persons acting had done so capriciously, venally, or from definite racial bias, because the opinion says that the proceedings which produced the result in Timmy’s case were adequate to satisfy the requirements of due process.
IV. THE RACIAL QUESTION
The complaint alleged that the action of the defendants in removing Timmy from custody of the Drummonds was motivated solely on racial grounds, that is it was done pursuant to a policy that black or part black children could not be placed for adoption with a white couple. One of the great defects in the proceeding here is the fact it is utterly impossible to determine whether or not this allegation is true. A careful reading of the documentary and oral testimony introduced at the trial gives me a strong belief that the decision made by the four or five workers in March to tell the Drummonds that they must give up Timmy so that he can be raised by a black couple was the one and only basis for all of the proceedings and the result that issued therefrom. In any event, there was no record, there was no transcript of testimony, there is no indication that any word about other reasons than Timmy’s race went into any decision-making or was the basis for the final decision.
The fact that this problem could not be resolved by the trial court on the record before it, as I firmly believe, adds much to my feeling of the necessity of having a much more adequate hearing procedure before such issues can be disposed of administratively.
What I have said up to this point is meant to indicate that I believe that both the Drummonds and Timmy have been denied a liberty right without due process, entirely without respect to the question of race. I simply add that when the question of whether the Department of Family and Children’s Services has a policy that, if available, only black parents may adopt black or mixed-race children is still unresolved because of the deficiency in the proceedings then the facts cry out for a different kind of hearing before the administrative body. This is necessary in order that there can be a proper review, if not administratively within the state, then in the federal court where such issues are cognizable.
I would adhere to the mandate issued following the panel opinion of this Court.
. At the time of removal here, Timmy was over two years old.
. It is to be noted again here that each of the investigations resulted in fulsome praise of the Drummonds’ relationship with the child.'
. It should be noted again that most of these reports were extravagant in their praise of the manner in which the Drummonds had developed a genuine loving family with this child. See 547 F.2d 835.